Defendant sold methamphetamine to three individuals. As part of the deal, she agreed to accept a handgun for the drugs. After the parties had been drinking and smoking methamphetamine, defendant handled the gun and it went off. The bullet struck the victim in the head, killing him. Defendant pleaded guilty to possession with intent to distribute a controlled substance, manslaughter, and four habitual criminal counts. The four habitual criminal counts were based on prior state felony convictions. Applying the habitual criminal sentence multiplier, the district court sentenced defendant to concurrent sentences of 32 years for possession with intent to distribute and 24 years for manslaughter.

On appeal, defendant contended that her 32-year sentence raises an inference of gross disproportionality and therefore requires a remand for an extended proportionality review. Here, defendant’s triggering offense of possession with intent to distribute a controlled substance was per se grave or serious. Defendant’s underlying conviction for conspiracy to distribute a controlled substance is also a per se grave or serious offense. The gravity of defendant’s offenses as a whole compared to the severity of her 32-year habitual criminal sentence does not merit a remand for an extended proportionality review. Defendant’s 32-year sentence does not raise an inference of gross disproportionality.

Defendant also contended that the district court lacked authority under the habitual criminal statute to sentence her to a 32-year sentence for a level 2 drug felony. The sentence multiplier of the habitual criminal statute applies to convictions “for any felony.” The district court had authority to sentence defendant to a term of 32 years under the habitual criminal statute.

A jury convicted Kadell of six counts of robbery and one count of aggravated motor vehicle theft, each of which is a class 4 felony. The prosecution filed habitual criminal counts, and Kadell moved to suppress his prior felony convictions as a way to collaterally attack those convictions. The motion was untimely, but Kadell argued that his failure to timely file was the result of excusable neglect. The trial court did not rule on the excusable neglect claim. Before sentencing, the trial court adjudicated Kadell a habitual criminal based on three prior felony convictions, including, as relevant here, one in 1997 for attempted cultivation of marijuana. In accordance with the habitual criminal statute, the trial court imposed a 24-year sentence in the custody of the Department of Corrections, four times the presumptive maximum sentence for a class 4 felony.

On appeal, Kadell contended that the trial court erred in imposing a sentence under the habitual criminal statute because there was insufficient evidence that he was convicted of three qualifying felonies before his current convictions. He argued that his 1997 conviction for attempted cultivation of marijuana did not count as a felony under the habitual criminal statute because when he committed his offenses in this case, attempted cultivation of marijuana was no longer a felony in Colorado unless the defendant possessed more than six plants, and the trial court had no evidence of how many plants were involved in the 1997 conviction. As a matter of first impression, the Colorado Court of Appeals concluded that for a prior drug felony conviction to qualify as a predicate offense under the habitual criminal statute, the prosecution must prove that the prior offense of conviction remained a felony under Colorado law at the time the defendant committed the new offense, even when the prior conviction was entered in Colorado. The prosecution did not present sufficient evidence of this fact at Kadell’s sentencing hearing.

Kadell next argued that the trial court erred by finding that his failure to timely file a collateral attack on his prior convictions was not the result of excusable neglect. The issue of excusable neglect is a question of fact to be resolved first by the trial court. The record does not reflect that the trial court ruled on Kadell’s excusable neglect claim.

Kadell further sought an extended proportionality review of his sentence. This argument is moot at this juncture.

The sentence was reversed and the case was remanded for further proceedings.

Brooks discovered that his girlfriend (the victim) was pregnant with another man’s child, and then argued with and assaulted her. While in jail, Brooks repeatedly telephoned the victim and others in an attempt to persuade them either to not testify against him on the domestic violence charge or to give false testimony. He also wrote letters to the victim to persuade her either to not testify or to testify falsely on his behalf. These letters were intercepted by a jail officer, and as a result, the victim did not receive them. Brooks was convicted of two counts of assault in the third degree against the victim, two counts of assault in the second degree against a peace officer, resisting arrest, violation of a protective order, and two counts of tampering with a witness or victim. The second tampering count was based on the letters. The court adjudicated Brooks a habitual criminal and imposed a mandatory 24-year sentence. Brooks requested and received an abbreviated proportionality review of the mandatory sentence. After that hearing the district court concluded that Brooks’s sentence was not disproportionate and denied him an extended proportionality review.

On appeal, Brooks argued that there was insufficient evidence to convict him of the second count of tampering with a witness or victim based on the letters because the victim never received them. The tampering with a witness or victim statute does not require that the “attempt” to tamper actually be communicated to the victim or witness. Therefore, the evidence was sufficient to convict Brooks on this charge.

Brooks also argued that the district court abused its discretion in taking judicial notice of the complete case files of his prior felony convictions and that without such improper judicial notice, there was insufficient evidence to support the habitual criminal adjudication. The registers of actions relevant to this case showed that Brooks’s two prior felony convictions were for distinct criminal offenses that occurred months apart. Thus, sufficient evidence supported his habitual criminal conviction.

Brooks further argued that his plea of guilty to felony theft from a person was constitutionally invalid and thus could not support his habitual criminal conviction. Brooks’s plea to theft was constitutionally valid because he entered it voluntarily and knowingly. The district court did not err in finding that it was a valid prior felony conviction under the habitual criminal statute.

Finally, Brooks argued that the district court erred in concluding that his sentence was not grossly disproportionate to his crimes and in not granting him an extended proportionality review. Tampering with a witness or victim is not a per se “grave or serious” offense. However, the facts underlying these crimes were grave or serious. The prosecution identified at least 250 phone conversations in which Brooks attempted to tamper with a witness or victim. Brooks continued tampering with the victim after the prosecution charged him with the first count of tampering and his phone privileges were discontinued. His conduct demonstrated a blatant disregard for the law and thus constituted a grave or serious offense. The Court of Appeals considered all of the convictions and the underlying circumstances as a whole and concluded that Brooks’s mandatory sentence was not grossly disproportionate.

Current law provides that, with certain exceptions, every person convicted of any class 1, 2, 3, 4, or 5 felony or level 1, 2, or 3 drug felony who, within 10 years of the date of the commission of the felony, has been twice previously convicted of a felony or a crime which, if committed within this state, would be a felony is an habitual criminal and shall receive an aggravated sentence. The bill states that:

A conviction for any class 4, 5, or 6 felony may not be used for the purpose of adjudicating a person as an habitual criminal unless the conviction was for a crime of violence; and

A conviction for any level 2, 3, or 4 drug felony may not be used for the purpose of adjudicating a person as an habitual criminal.

The bill was introduced in the Senate and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 1, 2017, at 1:30 p.m.

A.K. received a civil protection order against defendant after he attacked her while she was holding her infant son. The orderprevented defendant from contacting A.K. directly or through a third person except by use of text message. After defendant sent A.K. a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody, he was charged with violation of the protection order, a class 1 misdemeanor, and a habitual domestic violence offender sentence enhancer (HDVO statute), a class 5 felony.

The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. Pursuant to the HDVO statute, the trial court convicted defendant of a class 5 felony and sentenced him to thirty months in the custody of the Department of Corrections.

On appeal, defendant argued that the trial court violated his Sixth Amendment right to a jury trial. “The Sixth and Fourteenth Amendments to the United States Constitution require that any fact that increases the penalty for a crime beyond the statutory maximum, except the fact of a prior conviction, must be submitted to a jury and proven beyond a reasonable doubt.” Here, because the trial court and not the jury found the facts necessary to sentence defendant as a habitual offender, it violated his Sixth Amendment rights. Accordingly, the judgment of conviction was reversed and the case was remanded to the trial court for entry of judgment of conviction and resentencing on a class 1 extraordinary risk misdemeanor.

Defendant Reginald Marcus Porter appealed the judgment of conviction entered following a bench trial in which the court found him guilty of first-degree burglary, aggravated robbery, vehicular eluding, and attempted sexual assault. The prosecution cross-appealed the trial court’s dismissal of Porter’s habitual criminal counts. Porter’s conviction was affirmed, and the Colorado Court of Appeals disapproved of the trial court’s dismissal of the habitual criminal counts.

In 2002, Porter robbed and attempted to sexually assault a female casino employee, and then attempted to escape capture in a police chase. The trial court rejected Porter’s not guilty by reason of insanity (NGRI) defense and found him guilty of most of the substantive charges; it later dismissed the habitual criminal counts.

On appeal, Porter contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he was sane at the time of the offenses. The record supports that Porter’s behavior was driven in part by his use of drugs and in part by his antisocial nature. Thus, the record also supports a finding that Porter was not insane.

The prosecution contended that (1) the trial court erred in dismissing Porter’s habitual criminal counts; and (2) double jeopardy principles do not prevent the reinstatement of those counts. Here, Porter’s challenge to the habitual criminal counts was based on the same grounds that were asserted and rejected in his previous post-conviction appeal. Thus, the doctrine of collateral estoppel barred Porter from relitigating the issue, and, therefore, the trial court erred in dismissing the habitual criminal counts. However, jeopardy attached for Porter’s substantive counts when the first prosecution witness was sworn in at the bench trial. Consequently, jeopardy attached for Porter’s habitual criminal counts at that time, as well. Therefore, double jeopardy prohibited retrial of the habitual criminal counts.

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